AUSGRID v Butler - [2012] NSWWCCPD 19

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		AUSGRID v Butler [2012] NSWWCCPD 19
APPELLANT:		AUSGRID (formerly Energy Australia Pty Ltd)
RESPONDENT:		Brian Frederick Oxford Butler
INSURER:		AUSGRID (self - insured)
FILE NUMBER:		A2-2838/09
ARBITRATOR:	Mr C Tanner
DATE OF ARBITRATOR’S DECISION:		25 October 2011
DATE OF APPEAL HEARING:		15 March 2012
DATE OF APPEAL DECISION:		30 March 2012
SUBJECT MATTER OF DECISION:		Section 74 of the Workplace Injury Management and Workers Compensation Act 1998; absence of notice; consequence of failure to seek leave to raise liability issue not previously notified; s 289A of the Workplace Injury Management and Workers Compensation Act 1998; consent orders; party estopped from raising dispute as to liability; application of principles stated in Port of Melbourne Authority v AnshunPty Ltd [1981] HCA 45; 147 CLR 589; further loss; s 66 of the Workers Compensation Act 1987; quantification; Sch 6 to the Workers Compensation Act 1987; obligations of State Agency in conduct of litigation; Model Litigant Policy for Civil Litigation.
PRESIDENTIAL MEMBER:		Deputy President Kevin O'Grady
HEARING:		Oral
REPRESENTATION:		Appellant:	Mr Macken, solicitor, Leigh Virtue & Associates
Respondent:	Ms L Goodman, instructed by White Barnes Solicitors
ORDERS MADE ON APPEAL:		1. Paragraphs one, three and four of the Amended Certificate of Determination dated 27 October 2011 are confirmed. 2. Paragraph two of the Amended Certificate of Determination is amended by deleting “$14,478.75” and substituting “$11,250” but is otherwise confirmed. 3. The Amended Certificate of Determination is amended further to include the following order: “5. The respondent is to pay the applicant’s costs as agreed or assessed of the proceedings conducted before Arbitrator McManamey on 3 November 2009.” 4. The appellant to pay the respondent’s costs of the appeal

BACKGROUND

Mr Brian Butler, who retired from work in 2004, had been employed by AUSGRID (the appellant) as a patrolman/street-lighter for a period of 38 years. These proceedings concern claims with respect to injuries alleged to have been received in the course of that employment to his left knee and right wrist. There is no dispute between the parties concerning the right wrist injury, thus there is no need on this appeal to address factual matters relevant to that injury.
In proceedings before the former Compensation Court commenced by Mr Butler in 1994 (matter number: 15573 of 1994) an award was sought in respect of lump sums pursuant to ss 66 and 67 of the Workers Compensation Act 1987 (the 1987 Act). It was alleged that he had suffered a 15 per cent loss of use of the left leg at or above the knee. A sum of $14,478.75 was claimed pursuant to s 66.
The injuries alleged were particularised in the Application for Determination as follows:
“(a)   Day, month and year of injury:       (a)     (i)     24 July, 1977
(ii)     13 July, 1981
(iii)    19 October, 1992
(b)     Place of Injury:  (b)     (i)     Rosedale Avenue, St Ives
(ii)     Young Stree[sic], Balmain
(iii)    Pyrmont Garage,
Respondent’s premises
(c)     Nature of work at time of injury:     (c)     (i)     Ordinary duties
(ii)     Ordinary duties
(iii)    Ordinary duties
(d)     Cause of injury:  (d)     (i)     The Applicant tripped and
fell into a culvert injuring
his right wrist.
(ii)     The Applicant attempted to
prevent a ladder ontop[sic] of a
truck from swivelling by
throwing his left leg to one
side when he suffered pain
in the left knee.
(iii)    The Applicant slipped and
fell on stairs suffering a
further injury to his left
knee.
Additionally the Applicant placed
stress and strain upon his right wrist
and left leg by reason of the nature
and conditions of his employment.”
Those proceedings were settled when listed for hearing before Commissioner Turner of the former Court. Consent orders were made which included an award under s 66 in Mr Butler’s favour in the sum of $14,478.75 in respect of 15 per cent permanent loss of use of his left leg at or above the knee together with an award of $10,000.00 pursuant to s 67. The Registrar of the former Court issued a formal award in accordance with the parties’ agreement on 30 June 1995. That award contains no statement as to the date of the relevant left leg injury.
On 1 October 2008 Mr Butler made a claim against the appellant in respect of further loss of use of his left leg. That claim was accompanied by medical reports including one from Dr Bentivoglio dated 30 June 2008 in which there was an assessment of “impairment rating for [Mr Butler’s] left lower limb at or above the knee region” as being “in the order of 35 per cent at this stage”.
It is clear that the appellant rejected Mr Butler’s claim in respect of further loss. However, there is no evidence before the Commission concerning service by the appellant of a notice of dispute as is required by the provisions of s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
The present proceedings were commenced by Mr Butler in April 2009. His Application to Resolve a Dispute (Application) sought orders including one for a lump sum in respect of “further permanent impairment of the left leg at or above the knee”. That further impairment was particularised as a 20 per cent loss. The amount claimed was $19,305.00. A further claim in respect of lump sum for pain and suffering was also made.
The “Injury Details” appearing in the Application, so far as relevant, were as follows:
“Date of injury  30 June 1995 (deemed date) or alternatively October 2008 (deemed date)
Date of notice of injury Various dates including on or shortly after 13 July
1981, on or shortly after 19 October 1992 and
1 October 2008.
Date of compensation claim           On or shortly after 13 July 1981, on or shortly after
19 October 1992 and 1 October 2008.
Describe how the injury occurred   The Applicant sustained injury to his left knee from performance of heavy and repetitive duties in the course of his employment including specific incidents on 13 July 1981 and 19 October 1992. In earlier proceedings, the Applicant’s injury was deemed to have a date of injury of 30 June 1995. In the alternative, the Applicant argues a deemed date of injury as the date of lodgement of the Permanent Impairment Claim Form.”
A Reply to Mr Butler’s Application was registered with the Commission on 30 April 2009. The matters in dispute were enumerated at Part 3 of that Reply as follows:
“1.     Full particulars in regard to the claim have not been provided in accordance with Section 282 of the Act, noting that the Applicant failed to attend on [sic] the medical examination arranged.
2.     In the absence of the provision of full particulars, the Respondent says that the Application cannot proceed until after the Applicant attends on [sic] the medical examination required.
3.     The issues in dispute are whether there has been any deterioration in the Applicant’s condition since Lump Sum Compensation Benefits were paid, whether the Applicant’s Lump Sum Compensation entitlements have already been fully satisfied and the quantum of any such entitlement.”

A teleconference before Arbitrator McManamey on 21 May 2009 failed to resolve the dispute. The matter was then listed for conciliation and arbitration on 9 June 2009. During conciliation an agreement was reached between the parties concerning the claim. Representatives of both parties signed a hand written document headed “BY CONSENT”. The Arbitrator made the following consent orders:
“In this matter a conciliation conference was held where the parties were assisted by me, acting as an Arbitrator, to come to an agreed resolution of the issues in dispute. By reason of their agreement, and in accordance with Rule 15.9(1) of the Workers Compensation Commission Rules 2006, the determination of the Commission in this matter is as follows:

1.Application amended to delete claim in respect of deemed date of injury of 1 October 2008.
2.I grant leave to the Respondent to issue the Directions set out in Schedule ‘A’ attached to the signed consent orders. Directions to be returnable on or before 7July 2009. Both parties to have immediate access.

3.Both parties have leave to file any material produced in the Directions.

4.I remit the matter to the Registrar for referral to an AMS to assess loss of use of the right hand/wrist (1926) Table and loss of use of the left leg at or above the knee.

5.In the event that the Applicant is successful in the claim costs are to be assessed on the basis of a disputed claim.

The following is not a determination of the Commission, however, I note that the parties have agreed the following:
The Respondent has not disputed injury as set out in the Application to Resolve a Dispute.”

The matter was referred by the Registrar, for assessment, to an Approved Medical Specialist (AMS), Dr William Bye, on 15 June 2009. The terms of that referral erroneously made reference to date of injury being 24 July 1977 and that the “method of assessment” was to be “1926 Table”. Mr Butler’s solicitors wrote to the Registrar on 16 June 2009 stating that the form of request for the assessment by Dr Bye contained errors. The correspondence dated 16 June 2009 included the following:
“We note the date of injury and methods of assessment are incorrect.
In this regard, we note that the Consent Orders dated 12 June 2009 delete the claim for a deemed date of injury of 1 October 2008. In this regard, we note that an alternate date was also pleaded for a deemed date of injury. Accordingly, the correct [sic, date] for injury to our client’s left leg, being a deemed date, is 30 June 1995.
On this basis, the referral to the AMS should request assessments as follows;
. Date injury 24 July 1977 – right hand and wrist – 1926 Table.
. Date of injury 30 June 1995 – left leg at or above the knee – 1987 Table of Maims.
Please ensure the referral for assessment is appropriately amended to record the agreement reached between the parties.”
On 16 June 2009 the Registrar issued an amended referral for assessment. The particulars of the dispute included the following:
“Date of Injuries:  1. 24 July 1977
  2. 30 June 1995
Body part/s referred:  1. right hand & wrist
  2. left leg at or above the knee
Method of assessment:                   1926 table & table of disabilities”
That document included detail of the previous award in respect of “15 [per cent] left leg at or above the knee”.
A Medical Assessment Certificate (MAC) was issued by the AMS on 16 July 2009. Dr Bye in the course of his reasons for assessment stated:
“I presume the date of injuries [sic] for the left leg at or above the knee is a Deemed Date, 30.6.1995 as his original injuries were in 1981”.
The MAC certified as to a 30 per cent permanent loss of efficient use of the left leg at or above the knee.
It was at this point in time that the appellant became, and has remained, determined in its opposition to Mr Butler’s modest claim. In August 2009 the appellant instituted an appeal pursuant to s 327 of the 1998 Act against Dr Bye’s medical assessment. In October 2009 a Medical Appeal Panel chosen by the Registrar comprising Arbitrator Douglas, Dr Bodel and Dr Harvey-Sutton, ordered correction of the certificate in terms which are not presently relevant, but otherwise found no error.
The matter was subsequently listed for conciliation and arbitration before Arbitrator McManamey. The matter proceeded to arbitration notwithstanding the fact, as acknowledged by the Arbitrator, that the appellant had commenced proceedings in the Supreme Court. The appellant’s summons in the Supreme Court sought a declaration that the Medical Appeal Panel decision involved error on the face of the record and jurisdictional error, and an order that the Medical Appeal Panel’s decision be quashed.
The Arbitrator, on 12 November 2009, issued a Certificate of Determination and published his reasons for decision. The orders made included, relevantly, one providing that the appellant “pay $14,478.45 for 15 per cent further loss of use of the left leg at or above the knee” and also that it “pay $16,360.00 for further pain and suffering”.
An appeal against Arbitrator McManamey’s determination was brought by the appellant pursuant to s 352 of the 1998 Act. The hearing of that appeal was deferred pending the conclusion of the Supreme Court proceedings.
The appellant’s summons was heard by his Honour, Barr AJ, who delivered judgment on 20 May 2010. His Honour concluded that the Medical Appeal Panel’s denial of an opportunity to the appellant to attend and make submissions constituted failure to afford it procedural fairness. His Honour made the following orders:
“1.     Set aside the decision of the Medical Appeal Panel of 6 October 2009.
2.     Remit the matter to the Medical Appeal Panel to be dealt with according to law.
3.     Order the plaintiff to pay the first defendant’s costs of hearing.”
Following the making of the orders by the Supreme Court the appellant’s appeal before the Commission was heard and determined by the President, Keating DCJ. His Honour ordered that the decision of the Arbitrator dated 12 November 2009 be revoked. The matter was remitted to the Registrar for referral to a Medical Appeal Panel in accordance with the order made by Barr AJ.
A second Medical Appeal Panel was chosen by the Registrar which comprised Arbitrator Wynyard, Dr Pillemer and Dr Burke. The appellant was refused leave to put oral submissions to the second Medical Appeal Panel. A decision was delivered by the second Medical Appeal Panel on 22 November 2010. The second Medical Appeal Panel determined that the MAC of Dr Bye should be confirmed.
On 2 December 2010 written complaint was made to the Registrar by the appellant’s solicitors concerning the second Medical Appeal Panel’s refusal to grant an opportunity to present oral submissions as anticipated by Barr AJ as stated in the course of his Honour’s judgment. A request was made that the second Medical Appeal Panel rescind or revoke its decision made on 22 November 2010.
The second Medical Appeal Panel, on 18 January 2011, rescinded its decision made 22 November 2010 and ordered that the matter by remitted to the Registrar for the appointment of a new appeal Panel “in order that the oral hearing might be concluded”.
A third Medical Appeal Panel was chosen by the Registrar comprising Arbitrator Rimmer, Dr Breit and Dr Noll. An oral hearing was conducted on 25 March 2011. The third Medical Appeal Panel delivered its decision and published its Reasons for same on 13 April 2011. The MAC of Dr Bye was confirmed.
Mr Butler’s Application came before Arbitrator Tanner for conciliation and arbitration on 6 June 2011. The Arbitrator heard the parties’ submissions and reserved his decision. An amended Certificate of Determination issued on 27 October 2011 which was accompanied by the Arbitrator’s Reasons for his decision. It is that decision which is the subject of this appeal. The Arbitrator’s orders are recorded in that amended certificate as follows:
“The Commission determines:

1. The respondent will, pursuant to section 16 of the Workers Compensation Act 1926, and by consent, pay the applicant $2,065 in respect of 10 per cent further loss of use of the lower part of the right arm that results from injury to that body part on 26 July 1977.
2. The respondent shall, pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act), pay a further $14,478.75 to the applicant in respect of 15 per cent additional loss of use of the left leg at or above the knee that results from an injury the applicant is deemed to have sustained to that body part on 30 June 1995.
3. The respondent shall, pursuant to section 67 of the Workers Compensation Act 1987, pay a further $3,180 to the applicant in respect of additional pain and suffering that results from loss of use of the left leg at or above the knee.
4. The respondent shall pay the applicant’s costs as agreed or assessed.”

ISSUES IN DISPUTE

The issues in dispute on this appeal are whether the Arbitrator erred in the following respects:
(a) in the manner of application of the transitional provisions found in Sch 6 to the 1987 Act;
(b) in determining that Mr Butler received an injury, the deemed date of which being 30 June 1995, and
(c) in determining that ss 74 and 289A were relevant to a determination as to matters which may be raised by the appellant in defence of the claim.

HEARING

Mr Butler consents to this appeal being conducted on the papers without conference or formal hearing as is permitted by s 354(6) of the 1998 Act. The appellant has submitted that a formal hearing should be conducted. Submissions make reference to the “history of the matter” and the need to ensure that “all relevant issues are adequately addressed”.
Following consideration of the transcript of proceedings conducted before Arbitrator Tanner and the reasons expressed by him for his determination, it was determined that the matter should proceed by way of formal hearing. That hearing took place on 15 March 2012 at which time each party was represented by counsel. A transcript (TA) of that hearing is available.

THE ARBITIRAL PROCEEDINGS

Proceedings before the Arbitrator were recorded. A transcript (T) has been produced and made available to the parties.
The appellant made it clear that there was no dispute concerning Mr Butler’s claim with respect to further loss of the lower part of his right arm. The remaining issues for determination were enumerated by the Arbitrator (at T2 and T3). The summary of matters in dispute, which were agreed by the parties as correct, were as follows:

“I have had discussions with the legal representatives and have, together with them, identified the following issues as requiring determination by me.
Those are:
1.Subclauses 2 and 2(a) of clause 6 of Schedule 6 of the Transitional Provisions applicable to the determination of any compensation payable to the Applicant pursuant to Section 66 of the Workers Compensation Act 1987 in relation to an injury that is deemed to have been sustained on the 30^th June 1995.
2.Is the 30^th June 1995, in the circumstances of this case, a deemed date of injury, or the correct deemed date of injury, for the purposes of determination of any entitlement to compensation pursuant to Section 66 of the 1987 Act?
3.If 30 June 1995 is not a deemed date of injury or the correct date of injury what is the effect thereof?
4.If the said subclauses of the transitional provisions are applicable what is the Applicant’s entitlement, if any, to compensation pursuant to Section 66 of the 1987 Act and in regards to the apportionment, which would be required to be made in accordance with those subsections
…
5.Whether the Respondent is estopped from:
(i)Raising the Application of the Transitional Provisions as being relevant to the Applicant’s entitlement.
(ii)Raising any issue as to the date of injury.”

The evidence

There is no statement made by Mr Butler attached to his Application. I note that there is among the papers a statement made by him in February 2009. There is no record concerning the admission into evidence of that document. I have noted that that statement represents a brief summary of his medical history and his disabilities. The claim relates to an alleged further loss of use of Mr Butler’s left leg as well as claimed entitlement in respect of further pain and suffering (s 67). In the circumstances it is difficult to understand the failure of Mr Butler’s solicitors to adduce any evidence from him concerning the matters alleged. It becomes necessary to examine the medical evidence tendered on his behalf for the purpose of reconstructing the relevant history both before the entry of the award in 1995 and his alleged deterioration since that date.

Mr Butler has tendered a large number of medical reports and medical certificates which have been attached to the Application with no regard given to logical presentation of his case. There is no index of those documents provided as is required. The expert medical evidence relevant to Mr Butler’s left leg injury includes reports from Dr Vote, Dr Marnie and Dr Bentivoglio.

Dr Vote in report dated 22 July 1994 records a history of a left knee injury occurring in 1981, the diagnosis then being rupture of the medial collateral ligament. Dr Vote records that Mr Butler returned to work in September 1981 and returned for further consultation in November 1992. Mr Butler then informed Dr Vote that he “had intermittent trouble with the knee for a number of years and that he periodically experienced a sharp pinching sensation and occasional locking”. Mr Butler also reported that he had had a “recent direct injury to his knee two weeks prior” to that consultation. Dr Vote conducted an arthroscopy on 18 August 1993 which revealed “quite severe degenerative changes involving the lateral compartment chiefly involving the femoral articulation”. Dr Vote also noted that Mr Butler’s patella “exhibited grade four degenerative changes” and an “old tear of his medial meniscus was resected through the arthroscope. A chondroplasty was carried out on the lateral femoral articular surface.” At that time Dr Vote assessed Mr Butler’s loss of efficient use of his left leg at the knee “to be of the order of 15 per cent” but observed that “he would need a total joint replacement in the future”.
Dr Marnie, in his report of 22 October 1999 recorded a history of injury to Mr Butler’s left knee at work in 1979. It appears that Mr Butler had been confused when relating that history, given the history and subsequent treatment detailed by Dr Vote. Dr Marnie also records that in November 1997, as Mr Butler was walking in the workshop, his left knee gave way and he had severe pain and locking of the knee. It is recorded that in 1998, a corrective high tibial osteotomy was performed. It is further recorded that Mr Butler was off work for nine months and returned to light duties.
Dr Marnie reported again on 2 February 2005 and it is recorded that an arthroscopy was conducted in 2000 which gave rise to some relief of symptoms in Mr Butler’s left knee. In February 2002 Mr Butler was referred to Dr Bruce Caldwell who performed a total knee replacement on 18 April 2002. That procedure lead to relief of symptoms but Mr Butler was left with some tightness if his iliotibial band for which a release procedure was required in November 2002. Mr Butler returned to work following that procedure until his retirement which occurred in 2004. Dr Marnie expressed the view that Mr Butler had suffered a “25 per cent permanent loss of efficient use of his left leg at and above the knee arising from his work injuries and nature and conditions of his work up to and including 31 December 2001.”
Dr Bentivoglio in his report dated 13 June 2008 records a history of Mr Butler’s left knee injury in 1981 as he was attempting to stop a ladder from hitting lines. The treatment received at the hands of Dr Vote and Dr Caldwell is summarised in that report. It is stated “I believe that all of this gentleman’s knee disability relates to the original injury he had to his knee at work in the early 1980’s”. Dr Bentivoglio noted in a report dated 30 June 2008 that Mr Butler had been “originally awarded 15 per cent loss of efficient use of his left lower limb at or above the knee region on 30 June 1995”. Dr Bentivoglio expressed the view that Mr Butler’s “impairment rating for his left lower limb at or above the knee region would be in the order of 35 per cent at this stage”.
The balance of the documents attached to the Application are not directly relevant to matters raised on the appeal and need not be summarised. A late document was tendered by Mr Butler at the hearing, being a copy of correspondence dated 28 October 2009 from his solicitors to the appellant’s solicitors concerning matters not presently relevant.
The respondent relied upon a number of medical reports which had been included among the evidence tendered by Mr Butler. There was also a copy of a report dated 11 April 2008, prepared it seems, by Dr Caldwell. It is clear the document is not a complete copy of Dr Caldwell’s report. No attention has been given by the parties to this deficiency in the course of conduct of the hearing before the Arbitrator nor on this appeal.
The respondent tendered a report from Dr Alan W Searle dated 5 August 2005. Dr Searle recorded the history which was consistent with the matters recorded by those practitioners relied upon by Mr Butler. It seems that Dr Searle had examined Mr Butler on an earlier occasion, being 22 March 1995. However, there is no report tendered on behalf of the respondent relating to that earlier examination. Dr Searle expressed the following opinion:
“I would not suggest there has been any increase in the impairment in this man’s left knee since I last saw him, and thanks to the wonders of medical science his knee replacement has made his knee a good deal better. However it is reasonable to suggest that a total knee replacement should attract an assessment of 15 per cent permanent loss of efficient use of the leg at or above the knee to include the whole limb”.
The Arbitrator (at T4-5) recorded that there were before him in evidence a large number of documents relating to previous proceedings including those commenced before the former Court, the Commission and the Supreme Court. Those documents also included material relevant to the referral to Dr Bye and the appointment of the Medical Appeal Panels together with the outcomes of those deliberations. I take the view that those documents represent a record of proceedings to which the Commission may make reference and upon which reliance may be placed without formal tender in evidence by either party.

Submissions before the Arbitrator

The appellant placed reliance upon the transitional provisions found in Sch 6 to the 1987 Act (Sch 6 Pt 6 cl 6). It was argued that there “can be no doubt” that Mr Butler’s knee condition “is at least partly, and on one view, wholly, the consequence of an injury received before 30 June 1987, being in particular an injury received [in 1981]” (at T8.27). It was put, having regard to the relevant subclauses that “compensation is not payable for the part of a loss resulting from injury received before [commencement of Division 4 of Part 3 of the 1987 Act]” (at T9.3). The decision of Candy ADP in Leeton Shire Council v Newman [2006] NSWWCCPD 215 (Newman) was cited in support of the submission concerning the relevance of the transitional provisions and the need to take into account the consequences of previous injury when determining entitlement to lump sums as provided by Div 4 of Pt 3 of the 1987 Act. The appellant relied upon the evidence of Dr Bentivoglio concerning causation of Mr Butler’s knee disability. It was argued that the Commission “would ascribe either 100 per cent or close to 100 per cent of [Mr Butler’s] condition to the [1981 injury], and once you get to that point [Mr Butler] has no entitlement to compensation” (at T10.30).
The appellant further argued that the injury received by Mr Butler to his right knee may not be treated as a disease process within the meaning of either ss 15 or 16 of the 1987 Act. I note that objection was taken by Mr Butler’s counsel to that argument during the course of submissions. In dealing with that objection, the Arbitrator indicated that the issues for determination had been defined and, in the circumstances, permitted the appellant to proceed with its argument.
An argument was advanced that the proper application of the provisions of either ss 15 or 16 to the facts of the present matter could not “result in a date of injury of 30 June 1995”. It was asserted that Mr Butler and the appellant were “not ad idem” concerning the terms of the AMS referral and the 30 June 1995 date being the date of relevant injury. Reference was made in the course of submissions to the referral made by the Registrar to Dr Bye which, it was emphasised, made reference to the date 30 June 1995 but contained “no reference to a deemed date of injury”. There followed a lengthy exchange between the Arbitrator and the appellant’s solicitor, Mr Macken, concerning the terms of the agreement reached on 9 June 2009 as found in the consent order entered on 12 June 2009. It was asserted by Mr Macken that, whilst it was agreed that certain of Mr Butler’s allegations were to be “withdrawn” and that an assessment was to be referred to the Registrar for referral to an AMS, there was no agreement as to “what that ‘matter for assessment’ was”. It seems to be accepted by the appellant that the relevant referral was one in respect of “30 June 1995” but it disputes that it was a referral in respect of an “injury deemed to have occurred on 30 June 1995”. There followed another lengthy exchange between the Arbitrator and Mr Macken concerning the circumstances of the agreement to remit the matter to the Registrar for referral to an AMS. During that exchange Mr Butler’s counsel suggested to the Arbitrator that the dispute concerning the terms of any agreement had been first raised during submissions before the third Medical Appeal Panel. That does not appear to be the case.
The appellant proceeded to address the question as to whether any estoppel arises having regard to the agreement reached between the parties before Arbitrator McManamey. That subject was deferred by Mr Macken given his expressed preference to deal with the issue in reply.
Counsel for Mr Butler noted that the only amendment made to the Application before Arbitrator McManamey was deletion of “the reference to the injury on 1 October 2008”. Reference was made to the description in the Application of “how the injury occurred”. Counsel emphasised that injury was described as “injury to his left knee from performance of heavy and repetitive duties in the course of his employment, including specific incidents on 30 July 1981 and 19 October 1992” (at T42). It was accepted by counsel that Mr Butler had “relied upon the nature and conditions of his employment as well as two specific injuries”. It was emphasised that the Application included a notation in the particulars that the injury suffered by Mr Butler “was deemed to have a date of injury of 30 June 1995”.
Counsel noted in submissions that the appellant had never issued an s 74 notice and that the Reply noted that the issues in dispute were “whether there has been any deterioration in [Mr Butler’s] condition since lump sum benefits, compensation benefits were paid”. It was argued that “nowhere in that Reply, ever, takes issue with the date of injury”. It was argued that, once the remitter to the Registrar for the purpose of referral to an AMS occurred, the only issue between the parties concerned the question as to whether Mr Butler had any “further entitlement”. The orders made, it was put, create an estoppel which, it seems to have been argued, prevents the appellant from disputing liability, in particular, that it could not dispute an injury which “occurred on 30 June 1995”. It seems to have been argued that there was no evidence before the Commission concerning the dispute raised by Mr Macken as to the terms of agreement at the time the matter was remitted to the Registrar and it was put that it was an “absolute nonsense” to assert that the appellant was not aware that Mr Butler’s allegation of deemed injury occurring on 30 June 1995 was to be referred for assessment.
Counsel proceeded to address the appellant’s arguments concerning the relevance of the transitional provisions. It was put that those provisions did not have application “at the time that the award was entered into, that is on 30 June 1995”. The argument as advanced was confused and the Arbitrator attempted, on a number of occasions, to elucidate the precise argument concerning application of the transitional provisions. It seems that the point counsel wished to make was that those provisions had no application unless reliance was placed by a worker upon two separate injuries, one predating the passage of the 1987 act and one postdating that enactment. The present facts concerned a deemed date of injury of 30 June 1995 and nothing more. Hence, it was argued, Sch 6 Pt 6 cl 6 had no application.

It was argued, in the alternative, that should the Commission treat as relevant the injury received by Mr Butler in 1981, this injury should be viewed as forming a lesser or equal part of the overall loss than the subsequent injury in 1991 and the nature and conditions of Mr Butler’s employment. The relevant proportion was referred to in the course of submissions as being a “relatively small part … that would be attributable to the injury in 1981”.
The appellant, in reply, drew attention to the matters particularised in Mr Butler’s claim for compensation presented in 2008, and that form was contrasted with the allegations of injury as appear in the Application brought in the Commission by Mr Butler.
It seems to have been argued that all circumstances surrounding the claim for alleged further loss were such as to prevent any inference being drawn that there had been agreement by the appellant as to liability.

The Arbitrator’s decision

The Arbitrator made a careful and thorough summary of the history of these proceedings and earlier proceedings which had been commenced by Mr Butler against the appellant before the former Court and those proceedings instituted in the Supreme Court (between [2] and [68] of Reasons). The Arbitrator proceeded to record exchanges at the hearing between himself and Mr Macken, concerning the circumstances of the remitter to the Registrar for referral to an AMS by Arbitrator McManamey (between [73]–[80]). The Arbitrator proceeded to summarise the issues in dispute as follows (between [87]–[89] of Reasons):
“87. At the hearing on 6 June 2011, I ascertained that Mr Macken sought to ventilate the following issues on behalf of the respondent:
(a)Are subclauses 2 and 2(a) of clause 6 of Part 18C of Schedule 6 of the 1987 Act (that Schedule being referred to below as the Transitional Provisions) applicable to the determination of any compensation payable to the applicant pursuant to Section 66 of the 1987 Act in relation to an injury that is deemed to have been sustained on 30 June 1995?
(b)Is 30 June 1995, in the circumstances of this case, a deemed date of injury, or the correct deemed date of injury, for the purposes of determination of any entitlement to compensation pursuant to sections 66 and 67 of the 1987 Act?
(c)If 30 June 1995 is not a deemed date of injury, or the correct date of injury, what is the effect thereof?
(d)If the said subclauses of the Transitional Provisions are applicable, what is the applicant’s entitlement, if any, to compensation pursuant to Sections 66 and 67 of the 1987 Act, having regard to the apportionment that is to be made in accordance with those subsections?
88. Ms Goodman, for the applicant, submitted that the respondent was precluded from raising the foregoing issues. The following issues, requiring determination by me, and affecting the scope of the issues that the respondent may raise, emerged from Ms Goodman’s objection:
(e)Is the respondent estopped from:
(i)Raising the application of the Transitional Provisions as being relevant to the applicant’s entitlement; and
(ii)Raising any issue as to the date of injury.

89. The issues referred to in paragraph 87 above were not raised previously pursuant to section 74 of the 1998 Act. This raises whether the respondent therefore requires leave pursuant to section 289A of the 1998 Act to raise those issues, and if so, whether leave should be granted. That relevant issue for consideration would therefore be:

(f)Does the respondent require leave pursuant to section 289A of the 1998 Act to raise the issues referred to at paragraph 66 above and, if so, should leave be granted.”

The Arbitrator noted (between [91]–[93]) the documentary evidence which had been admitted in the proceedings, together with all those documents and materials relating to the conduct of proceedings which had been taken into account by him in determining the dispute between the parties.
The Arbitrator commenced his adjudication of the dispute with a consideration of the arguments raised with respect to the date of injury. In his Reasons (between [96]–[182]) the Arbitrator gave careful consideration to the history of the present proceedings and ultimately found that the appellant had not given notice concerning a dispute as to liability and, further, that there was no proper basis to permit the appellant to raise such a dispute in defence of the claim. It was also found (at [181]) that there was no basis to allow the appellant to raise a dispute as to whether 30 June 1995 is, or is not, a deemed date of injury.
The Arbitrator proceeded (between [183]–[201]) to consider the question as to whether the appellant was estopped from “seeking to raise a dispute regarding the date of injury”. Following a consideration of relevant authority and the history of the conduct of proceedings, with particular emphasis being placed upon the entering of consent orders on 12 June 2009, it was determined that the appellant was estopped from contesting that 30 June 1995 was a deemed date of injury. The Arbitrator concluded his consideration of the question of estoppel by reference to the decision of the High Court in Port of Melbourne Authority v AnshunPty Ltd [1981] HCA 45; 147 CLR 589 (Anshun). The relevant finding made by the Arbitrator was that there were:
“no circumstances in the current matter that would support any argument that [the appellant] might ‘justifiably refrain from litigating’ the issue of injury prior to referral of the matter to an AMS, yet would wish to litigate that issue following assessment of loss by the AMS”.
The Arbitrator proceeded to a consideration of the question as to whether the appellant had made a relevant admission at the time of the remitter to the Arbitrator for referral to an AMS. Following a discussion (between [202]–[211]) the Arbitrator concluded that the appellant was not entitled to dispute that 30 June 1995 was “a deemed date of injury”.

The Arbitrator next considered the question of the proper application of the transitional provisions to the facts. The Arbitrator considered the manner in which injury was particularised in the Application, noting that reference is made to “incidents” in 1981 and 1992. It was observed by the Arbitrator that “[Mr Butler] did not allege that he suffered an injury (that is, a personal injury as contemplated by s 4 of the 1987 Act) on either 13 July 1981 or 19 October 1992”. The Arbitrator concluded that:
“[Mr Butler’s] case was thus formulated, and pleaded, as one involving a single compensable injury caused cumulatively by a process of heavy and repetitive duties inclusive of certain ‘incidents’, requiring loss to be assessed with reference to a deemed date”.
The Arbitrator further concluded that the “incidents” on 13 July 1981 and 19 October 1992 could not be considered to be “previous injuries, sustained prior to the injury referred to the AMS for assessment”. The Arbitrator concluded that “there could be no deduction, pursuant to s 323 of the 1998 Act”. He concluded that Dr Bye, the AMS, “correctly declined to make such a deduction”.
The Arbitrator proceeded to consider the operation of Sch 6 Pt 6 cl 6 to the 1987 Act. At [223] of Reasons the Arbitrator appears to have adopted the view that “no legislative provision required differentiation between loss resulting from injury prior to the enactment of the Div 4 Pt 3 of the 1987 Act, and loss resulting from injury subsequent to such enactment” at the date of settlement in the former Court in 1995. Following a summary of argument advanced on behalf of the appellant concerning the application of the transitional provisions the Arbitrator concluded that:
“in the absence of any injury prior to the commencement of Division 4 of Part 3 of the 1987 Act, subclause 2 of clause 6 of Part 6 of Schedule 6 does not apply to this matter, and no part of the loss assessed by Dr Bye can be considered to be non-compensable” (at [233] of Reasons).

The Arbitrator concluded that Mr Butler was entitled to an award in respect of further loss of efficient use of his left leg and was entitled to a further sum in respect of pain and suffering. The award, as noted at [25] above, was entered in favour of Mr Butler. The manner of calculation of Mr Butler’s entitlement to compensation pursuant to s 66 was the subject of discussion at the hearing of the appeal and that subject is addressed below.

SUBMISSIONS, DISCUSSION AND FINDINGS

This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“(5) An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“(7) On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
The three grounds of this appeal are outlined in [26] above and shall be referred to as Ground A, Ground B and Ground C consecutively. The nature of the Arbitrator’s determination and the submissions which were put on appeal require that the discussion which follows oscillates between Grounds A and C in order to resolve the questions they raise.

Grounds A and C

Ground A

Written submissions in support of this appeal deal firstly with the suggested error by the Arbitrator “in his consideration and interpretation of cl 6 of Pt 6 of the Transitional Provisions of [the 1987 Act]” (Ground A). The appellant is there making reference to the Savings, Transitional & Other Provisions which appear at Sch 6 Pt 6 of the 1987 Act. The relevant provisions are to be found at Sch 6 Pt 6 cl 6 which has been the subject of repeated amendment. That provision as it stood at the date of hearing before the Arbitrator was, and remains, in its form as amended by the WorkCover Legislation Amendment Act 1995 (Act No 89) which provides:

“SCHEDULE 6, Part 6, Clause 6

6 Loss resulting both from existing injury and from injury received after commencement of this Act

(1)If a loss mentioned in the Table to Division 4 of Part 3 of this Act resulted both from an injury received before the commencement of that Division and an injury received after that commencement, the loss shall, for the purposes of determining the amount of compensation payable in accordance with this Part and this Schedule, be treated as having resulted from the injury received after that commencement.
(2)However, no compensation is payable in accordance with this Part and this Schedule for the part of the loss resulting from the injury received before that commencement whether or not compensation has been paid or is payable under section 16 of the former Act for that part of the loss.
(2A)The amendment made to subclause (2) by the WorkCover Legislation Amendment Act 1995 is made to avoid doubt and, accordingly, is taken to have applied from the commencement of Division 4 of Part 3 of this Act. The amendment extends to court proceedings commenced but not finally determined before the commencement of the amendment but does not affect any award of compensation made before that commencement or any compensation that a worker has received or agreed to receive before that commencement.

(3)Subclause (2) is enacted to avoid doubt and, accordingly, is taken to have applied from the commencement of Division 4 of Part 3 of this Act. However, subclause (2) does not affect any court proceedings determined or commenced before the date of assent to the Workers Compensation Legislation Amendment Act 1995.”

I have earlier (between [56] and [58] above) attempted to summarise the Arbitrator’s reasoning and conclusions concerning the relevance of the transitional provisions to the facts as found by him.
The appellant correctly asserts in submissions that the Arbitrator had determined that “the injury sustained by [Mr Butler] on 13 July 1981 was not relevantly an ‘injury’ as described in the Transitional Provisions” (appellant’s further submissions at [1]). This determination, the appellant argues, was made in error.
The appellant develops its argument by addressing the evidence concerning what is said to be the undoubted occurrence of injury in 1981 being a “frank injury giving rise to a pathological alteration of the condition of [Mr Butler’s] knee”. Reliance is placed upon the decisions in Lyons v Master Builders Association of NSW Pty Ltd (2003) 25 NSWCCR 422 and Rail Services Australia v Dimovski [2004] NSWCA 267; 1 DDCR 648.
The decision of the Court of Appeal in Gales v Lovett, McCracken & Bray Pty Ltd [2008] NSWCA 171; 6 DDCR 352 is relied upon by the appellant in support of its argument that the Arbitrator’s disregard of the 1981 occurrence as being an injury was an error given the Court’s expressed view that s 15 (and, by inference, s 16 of the 1987 Act) does not “create an injury, simply by deeming an injury to have occurred on a particular date” (per Hodgson JA at [32]). It is put that the “legal fiction” referred to by the Arbitrator in his Reasons “cannot operate so as to turn what is clearly an ‘injury’ on 13 July 1981 into something other than an ‘injury’ for the purpose of the application of these Transitional Provisions” (appellant’s further submissions at [1]).
It is asserted that Mr Butler has conceded that injury was received in 1981. It is put that the transitional provisions in that circumstance “required that no compensation be payable for the part of the loss resulted [sic] from the injury received before 30 June 1987 (in this case July 1981)”.
The decision of Candy ADP in Newman, which case was relied upon by the appellant before the Arbitrator, is said in submissions on this appeal to have been wrongly disregarded by the Arbitrator in reaching his decision. It is put that the decision of Newman supports the appellant’s argument concerning the relevance of 1981 injury and the need to apply the transitional provisions.
The appellant at the hearing of the appeal elaborated the written submissions by reference to matters raised in the Statement of Reasons of the third Medical Appeal Panel dated 13 April 2011. It had been raised with Mr Macken in exchanges during submissions, that if error by the AMS in making the assumption of a deemed date of injury is suggested (s 327(3)(d)) then, the appellant’s remedy was to challenge the MAC before a Medical Appeal Panel and if unsatisfied by the outcome of such appeal, to seek prerogative relief from the Supreme Court. Such an approach acknowledges the distinction drawn by the legislation between questions going to liability and medical issues; the former being matters to be determined by the Commission, the latter by an AMS.
Mr Macken sought to refute that suggestion by reliance upon the following matters stated by the third Medical Appeal Panel at [123] and [128] of its Reasons:
“123. The application of transitional provisions in Schedule 6 Part 18C was considered by the Medical Appeal Panel in NSW Police Services v Sutherland (WCC M1 – 001298/10). In its decision dated 13 August 2010, that panel determined that the making of a reduction in the WPI was not a matter referred to an AMS and the issue of reduction in accordance with Schedule 6 Part 18C(3) of the 1987 Act would need to be determined by an Arbitrator. This decision was consistent with the approach taken in Young v Commissioner of Police (WCC 10343/09) and Ryan v NSW Police Force (WCC 7216/10).
...
128. In our view, an Arbitrator, not a MAP, should determine whether the provisions of schedule 6 applied and if it is decided that the provisions did apply, the arbitrator can determine the part of the loss resulting from the injury received before that commencement of Division 4 of Part 3 of the 1987 Act or even request the AMS to give a general medical opinion as to what part of the loss resulted from the injury received before that commencement of Division 4.”
It was argued that, should a challenge to the MAC proceed to the Supreme Court the appellant would “be met with an argument saying: why are you here because the appeal [third Medical Appeal] panel said you can address the question you’re concerned about being [any deduction upon proper application of the transitional provisions]” before an arbitrator (at TA8.45).
The appellant submits that there was a “referral back to an arbitrator, Arbitrator Tanner, to determine that issue” (at TA10.28). It appears also that the appellant places reliance upon that stated by the third Medical Appeal Panel at [131] and [132] of Reasons:
“131. The AMS was not asked to make an assessment of the part of the loss resulting from injury received before 30 June 1987 and such an assessment would not be binding. This matter will need to be returned to an Arbitrator to determine the section 67 claim, to deduct an amount for the prior compensation paid and to decide whether the Appellant should be given leave to dispute whether the transitional provisions should be applied in this matter and if leave is given determine that question. This is consistent with the approach taken in the Commission in the other cases referred to above, including Leeton, that dealt with the application of transitional provisions.
132. It follows therefore that no deduction needs to be made pursuant to s 323, but that the deduction for the prior compensation paid for the percentage of loss already agreed to have caused by this injury of 15% will be done at arbitral level. The question of the applicability of the transitional provisions is also a matter to be determined at arbitral level.”
The Arbitrator, before addressing the question concerning the application of the transitional provisions, dealt with preliminary issues which I have summarised between [52] and [54] above. There were, essentially, four such matters determined by him being:
(a) the appellant had given no notice concerning a dispute as to liability as required by s 74 of the 1998 Act;
(b)     there was no basis to allow the appellant to raise a dispute as to whether 30 January 1995 is, or is not, a deemed date of injury (s 289A of the 1998 Act);
(c)     the appellant was estopped from contesting that 30 June 1995 was a deemed date of injury, and
(d)     the notation made by Arbitrator McManamey in June 2009 that there was no dispute as to liability constituted an admission by the appellant that Mr Butler “sustained injury to the left leg at or above the knee, with a deemed date of injury of 30 June 1995”, and that there was not “any valid basis to disturb what was previously common ground or conceded” (at [208] of Reasons).
It was only then that the Arbitrator addressed the issue concerning the proper application of the transitional provisions to the facts as found. His reasoning has been summarised between [56] and [58] above.

Ground C

It is not disputed that the appellant has not given Mr Butler a notice of dispute as to liability as required by s 74.
Section 289A makes provision for “further restrictions as to when a dispute can be referred to [the] Commission” it provides:
“289A Further restrictions as to when a dispute can be referred to Commission
(1)A dispute cannot be referred for determination by the Commission unless it concerns only matters previously notified as disputed.
(2)A matter is taken to have been previously notified as disputed if:
(a)it was notified in a notice of dispute under this Act or the 1987 Act after a claim was made or a claim was reviewed, or
(b) it concerns matters, raised in writing between the parties before the dispute is referred to the Registrar for determination by the Commission, concerning an offer of settlement of a claim for lump sum compensation.
(3)The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission. However, the Commission may hear or otherwise deal with a matter subsequently arising out of such a dispute.
(4)Despite subsection (3), a dispute relating to previously unnotified matters may be heard or otherwise dealt with by the Commission if the Commission is of the opinion that it is in the interests of justice to do so.”
The appellant’s reliance upon the application of the transitional provisions, as may readily be seen from an examination of submissions put before the Arbitrator, is pressed with the object of eliminating, or at least minimising, its liability to pay any further compensation to Mr Butler. On any view of the circumstances it is clear that reliance upon the Schedule constitutes a dispute as to liability. Such is, plainly, a legal issue.
As was stated by Handley AJA in Haroun v Rail Corporation New South Wales [2008] NSWCA 192; 7 DDCR 139 (at [16]):
“The scheme for the settlement of compensation disputes established by the 1998 Act read with the Workers Compensation Act 1987 (NSW) (the 1987 Act) is to have factual and legal issues resolved by an Arbitrator subject to an appeal to a President or Deputy President, and to have certain medical issues decided by an AMS subject to appeal to a Panel.”
The appellant has not (as is clear from the submissions on this appeal) made an application pursuant to s 289A(4) that the Commission hear or otherwise deal with the matter of dispute concerning application of the Schedule in determining the quantum of any entitlement.
In those circumstances such dispute could not be referred for determination. The restriction on referral of disputes as provided by s 289A, on the present facts, prevented that issue being determined by the Arbitrator.
The Arbitrator has not, in my view, erred in determining that ss 74 and 289A were relevant to a determination as to those matters which may be raised by the appellant in defence of the claim. Proper application of those sections to the facts has the consequence that the suggested dispute concerning the transitional provisions could not be referred for determination by the Commission.

Return to Ground A

It follows that the Arbitrator has erred in purporting to make the determination (at [233] of Reasons) concerning the transitional provisions. The appellant’s failure to give notice of dispute (s 74) and the consequences of the application of s 289A (in the absence of any application made as permitted by s 289A(4)) gives rise, in my opinion, to a procedural bar preventing determination of the question.
The appellant’s complaint that the Arbitrator has failed to consider the decision of Newman fails to acknowledge that that decision was delivered at a time before the passage of s 289A of the 1998 Act. I acknowledge that the decision in Newman and those other authorities relied upon by the appellant are relevant to a consideration of the proper construction and application of the transitional provisions. However that question, as earlier noted, was not properly before the Arbitrator and that question may not be determined on this appeal. Ground A relied upon by the appellant must fail.

Return to Ground C

The appellant, in relying upon the observations made by the third Medical Appeal Panel has, again, failed to acknowledge a matter of fundamental relevance being that the leave required to hear or otherwise deal with a previously unnotified matter, that is the dispute concerning the transitional provisions, has never been sought on its behalf as anticipated at [131] of the third Medical Appeal Panel’s Reasons.
The Arbitrator had before him a MAC which was conclusively presumed to be correct as to those matters specified in s 326(1) which provides:
“326 Status of medical assessments
(1) An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned:
(a)the degree of permanent impairment of the worker as a result of an injury,
(b)whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,
(c)the nature and extent of loss of hearing suffered by a worker,
(d)whether impairment is permanent,
(e)whether the degree of permanent impairment is fully ascertainable.”
The AMS’s assessment that Mr Butler had a 30 per cent permanent loss of efficient use of the left leg at or above the knee and that no proportion of permanent impairment was due to any previous injury or pre-existing injury or abnormality (s 323 of the 1998 Act) was binding upon the parties. For the reasons above stated the appellant was barred from seeking any adjudication of its dispute founded upon the application of the transitional provisions. An award in favour of Mr Butler in respect of a further loss of efficient use of the limb could not be resisted by the appellant. I conclude that the Arbitrator was correct to enter an award. However, as explained below, his calculation of entitlement requires amendment.

Ground B

Ground B relied upon by the appellant challenges the Arbitrator’s finding that it was estopped from “seeking to raise a dispute regarding the date of injury”. The assertion made in submissions on this appeal that “it is common ground but otherwise evident that there is no basis by [sic] which 30 June 1995 could be determined to be a deemed date of injury having regard to the operation of either [ss 15 or 16 of the 1987 Act]” must, in my view, be rejected for the following reasons.
Leaving aside the proper inferences to be drawn from the agreement reached between the parties before Arbitrator McManamey on 9 June 2009, Mr Saul, counsel for the appellant, is recorded in the transcript of proceedings conducted before that Arbitrator on 3 November 2009 as stating “the first issue is that what was referred [to the AMS] was not a deeming injury… but an injury on 30 June 1995” (T3.20) and later “I’m not really … aware of exactly what 30 June 1995 is supposed to mean. Well, we’ve accepted it for the purposes of the MAC/MAP [sic]” (at T3.43).
Those statements by counsel must be borne in mind together with the manner in which Mr Butler’s application was particularised concerning the allegation of injury (noted at [8] above) and the agreement reached concerning referral to an AMS (noted at [10] above).
Before any agreed amendment, the Application particularised two “deemed” dates of injury being 30 June 1995 and 1 October 2008 (the date of lodgement of the claim for further loss). By agreement the reference to the 2008 date was deleted. It is open to inference, as was put to the appellant at the hearing of the appeal, that the appellant sought that amendment to obviate any possible argument that the claim for further loss was in respect of a separate injury (s 15(4)), the deemed date of which was 1 October 2008, relying upon the reasoning found in the decision of the Court of Appeal in Alto Ford Pty Ltd v Antaw [1999] NSWCA 234; 18 NSWCCR 246 (per Sheller JA at [25]). One result of the amendment was to remove any prospect of entitlement being calculated at 2008 rates.

Having considered the question and argument advanced at the hearing I consider it reasonable to draw the inference noted immediately above. That amendment left as the only “date of injury” 30 June 1995 (deemed date) as particularised. The repeated suggestion that the parties were not “ad idem” as to the suggested agreement concerning 30 June 1995 being a deemed date of injury must, on this view of the appellant’s conduct, be rejected. The protestation of the appellant that such date was “meaningless” must be tested having regard to matters raised at the hearing of the appeal. That was that as at 30 June 1995 Mr Butler was still working with the appellant and it is common experience in proceedings such as the present, for parties when reaching settlement, to reach an agreement concerning the deemed date of injury as being late in the relevant chronology with a view to protecting the employer concerning any future claims. When this was put to the appellant, the mistaken assertion was made that Mr Butler was not then (in 1995) employed by the appellant. That suggestion was later withdrawn. I reject the appellant’s assertion of error on the part of the Arbitrator concerning his findings as to the deemed date of injury.

The appellant has also argued concerning Ground B that the Arbitrator has erred in concluding that it is estopped from denying that the deemed date of injury is 30 June 1995. It was put by the appellant at the hearing of the appeal that “it can’t be an issue estoppel because the issue has not been determined. It has to be some other form of estoppel, an Anshun estoppel or an estoppel by conduct or something of that kind” (TA7.10).
The Arbitrator has, as noted at [54] above, concluded that the principles found in Anshun are relevant to the present facts and that application of those principles to the dispute regarding whether 30 June 1995 is the deemed date of injury gives rise to an estoppel. That is a conclusion with which I agree. The failure to raise the liability issue before referral to the AMS was in all the circumstances unreasonable as discussed in the joint judgment (per Gibbs CJ, Mason J and Aickin J at 602-603). In reaching this conclusion I have had regard to the provisions of s 321(4)(a) of the 1998 Act which provides:
“(4) The Registrar may not refer for assessment under this Part:
(a) a medical dispute concerning permanent impairment (including hearing loss) of an injured worker where liability is in issue and has not been determined by the Commission”
Ground B raised by the appellant must fail.

Conclusion

As discussed above Grounds B and C have been rejected. I have earlier determined (at [87] above) that the entry of the award in favour of Mr Butler was correct. In so concluding it is clear that I am of the opinion that the Arbitrator’s decision was not affected by any error made by him in proceeding earlier to determine the application of the transitional provisions (Ground A).

Quantum of entitlement

It was made clear during exchanges with counsel at the hearing of the appeal that quantification of Mr Butler’s entitlement in 1995 had been determined not, as suggested by the parties earlier, upon the rates applicable as at June 1995, but by reference to the relevant table as at 1 October 1992.
The Arbitrator’s calculations also make reference to the rates fixed as at October 1992, although a false assumption was made that the rates were those current as at 1 June 1995.
At the hearing of the appeal the parties’ attention was drawn to the reduction of the quantum of entitlement pursuant to ss 66 and 67 effected by the WorkCover Legislation Amendment Act 1996 which came into operation on 12 January 1997. The application of those amendments was regulated by the transitional provisions (Sch 6 Pt 6 cl 18). It was argued that Mr Butler’s claim was not caught by those amendments given that he had duly made a claim in respect of the compensation prior to the amendment (Sch 6 Pt 6 cl 18(1)). Having regard to the fact that this is a claim for further loss, the claim having been made in October 2008, and the terms of Sch 6 Pt 6 cl 18(2), that submission must be rejected.
It was agreed by the parties (as noted at TA35) that should I conclude that the amendments apply to the present claim, as I have, the appropriate money sum is 15 per cent of $75,000 being $11,250. The Arbitrator’s award requires amendment to reflect the operation of the 1997 amendments.
The determination of the first appeal by the President, Keating DCJ, included his Honour’s conclusion that costs of the proceedings before Arbitrator McManamey should follow the result of the determination of the Arbitrator to whom the matter was to be remitted. This has been overlooked in the Arbitrator’s orders as they appear in the Certificate of Determination. However, the appellant agrees that, should Mr Butler succeed on this appeal, those costs should follow that event (at TA47). The Arbitrator’s orders are to be amended to include such an order as to costs of the earlier hearing.
Before concluding my consideration of this dispute, there is a matter which, in my view, needs to be raised. The appellant, now known as AUSGRID, is a State owned corporation whose shareholder is the New South Wales Government. It is thus an agency of the State of New South Wales and is bound by those obligations defined by the Model Litigant Policy for Civil Litigation endorsed by Cabinet.
The nature of the obligations upon the appellant in conduct of litigation such as the present is set out at 3.1 and 3.2 of the Policy which state:
“3.1 The obligation to act as a model litigant requires more than merely acting honestly and in accordance with the law and court rules. It also goes beyond the requirement for lawyers to act in accordance with their ethical obligations. Essentially it requires that the State and its agencies act with complete propriety, fairly and in accordance with the highest professional standards.
3.2 The obligation requires that the State and its agencies, act honestly and fairly in handling claims and litigation by:
a) dealing with claims promptly and not causing unnecessary delay in the handling of claims and litigation;
b) paying legitimate claims without litigation, including making partial settlements of claims or interim payments, where it is clear that liability is at least as much as the amount to be paid;
c) acting consistently in the handling of claims and litigation;
d) endeavouring to avoid litigation, wherever possible. In particular regard should be had to Premier’s Memorandum 94-25 Use of Alternative Dispute Resolution Services By Government Agencies and Premier’s Memorandum 97-26 Litigation Involving Government agencies;
e) where it is not possible to avoid litigation, keeping the costs of litigation to a minimum, including by:
i) not requiring the other party to prove a matter which the State or an agency knows to be true; and
ii) not contesting liability if the State or an agency knows that the dispute is really about quantum;
f) not taking advantage of a claimant who lacks the resources to litigate a legitimate claim;
g) not relying on technical defences unless the interests of the State or an agency would be prejudiced by the failure to comply with a particular requirement and there has been compliance with Premier’s Memorandum 97-26;
h) not undertaking and pursuing appeals unless the State or an agency believes that it has reasonable prospects for success or the appeal is otherwise justified in the public interest. The commencement of an appeal may be justified in the public interest where it is necessary to avoid prejudice to the interest of the State or an agency pending the receipt or proper consideration of legal advice, provided that a decision whether to continue the appeal is made as soon as practicable; and
i) apologising where the State or an agency is aware that it or its lawyers have acted wrongfully or improperly.”
That policy preserves an agency’s right to act firmly and to protect its interests (3.3). However, it is evident that the manner of conduct of these proceedings which have to date engaged an AMS, two Arbitrators at hearings, three Medical Appeal Panels each comprising an Arbitrator and two Approved Medical Specialists, a Judge of the Supreme Court of New South Wales and two Presidential members of the Commission suggests strongly that there has been a departure from the standards set by the Policy. The appellant’s conduct, and that of its legal representatives, must be assessed having regard to the modest nature of the claim and the appellant’s apparent disregard of the Commission’s need to attain its objectives as defined in s 367 of the 1998 Act. The manner of conduct of the defence of this claim is to be deplored and such conduct should not be repeated.

DECISION

Paragraphs one, three and four of the Amended Certificate of Determination dated 27 October 2011 are confirmed.
Paragraph two of the Amended Certificate of Determination is amended by deleting “$14,478.75” and substituting “$11,250” but is otherwise confirmed.
The Amended Certificate of Determination is amended further to include the following order:
“5. The respondent is to pay the applicant’s costs as agreed or assessed of the proceedings conducted before Arbitrator McManamey on 3 November 2009.”

COSTS

The appellant is to pay Mr Butler’s costs of this appeal.

Kevin O'Grady

Deputy President
30 March 2012

I, CATHRINE LOREN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE